kagel environmental, llc nationwide wetlands, …kagel environmental, llc wetlands, wildlife and...

Kagel Environmental, LLC 3879 E 200 N

Nationwide Wetlands, Waters & Wildlife Consulting Rigby, Idaho 83442

[email protected]

[email protected]

Phone (208) 745-0076 Cell (208) 313-3890 Fax (208) 441-4382

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April 30, 2014

Daniel B. Frank, Esq.

Frank Law Office, P.C.

519 E. 18th

Street

Cheyenne, WY 82001

Dear Mr. Frank:

This is in regard to the field inspection and environmental site assessment that we, Kagel

Environmental, LLC (KE), performed for you on the property of Andrew Johnson on

Saturday, April 5, 2014. The subject project site is located within an approximate 8-acre

farm parcel of land owned by Mr. Johnson, and is described as being within Section 30,

Township 15 North, Range 115 West, Uinta County, near Fort Bridger, Wyoming. The

purpose of this site assessment was to provide you (Frank Law Office, P.C.), with KE’s

professional opinion regarding the general identification and location of the extent of any

federally regulated waters of the U.S., including wetlands, especially as regards the

potential violation of the Clean Water Act as alleged in 2013 by the U.S. Army Corps of

Engineers (COE), and the Environmental Protection Agency (EPA). As a former COE

senior regulatory project manager and enforcement officer, the methodology KE used to

identify the existence of regulated areas and/or impacted aquatic resources, etc., was that

approved by the U.S. Army Corps of Engineers and Environmental Protection Agency,

including adherence to the official 1987 Corps of Engineers Wetlands Delineation

Manual – Arid West and/or Western Mountains, Valleys, and Coast Region Supplement,

2008.

Before summarizing our site inspection, findings, and conclusions, etc., we’d like to

clarify that despite the contention by EPA that they believe the alleged violation site is

located in Utah, Mr. Johnson has assured us that his farm is located in the state of

Wyoming. In a “Letter of Potential Violation” dated May 22, 2013 addressed to Mr.

Johnson and signed by James H. Eppers, Supervisory Attorney and Arturo Palomares,

Director, EPA’s Office of Enforcement, Compliance and Environmental Justice, EPA

stated that the alleged violation site is in the state of Utah. It’s therefore reasonable to

assume that there may be another alleged Clean Water Act violation in Utah by someone

with the same name, or in the alternative, that the EPA simply was unable to accurately

identify or determine in which state Mr. Johnson’s farm is located.

It’s KE’s understanding that the Wyoming State Engineer designated the pond for the

sole purpose of stock watering. Although it’s KE’s understanding that such stock ponds

are exempt from Section 404 permitting (33CFR Part 323.4), they still require a permit

from the state of Wyoming. It’s also our understanding that the small creek channel

where the pond is located is mostly perennial and identified as Six Mile Creek.

Kagel Environmental, LLC

Wetlands, Wildlife and Permitting Specialists

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SITE DESCRIPTION & METHODS

Upon arriving at the Johnson farm, the owner introduced himself and his wife (Katie

Johnson), and then politely showed us the entire area of the recently constructed stock

pond, including water control structure, culvert pipe, creek channel, erosion controls, and

the nearby irrigation canal where the creek terminates. The stock pond is generally

described as a rather narrow, oblong (elongated) shaped oval, and appears to have been

constructed via a combination of excavation work and berm/dam construction. As

calculated by Google Earth Pro Measuring Tools, the pond is approximately 615 feet in

length along its east/west axis, and approximately 160 feet at its widest north/south axis.

KE also observed that the pond construction did not appear to have required filling of

wetlands, but the construction did require the discharge of fill material below the plane of

the ordinary high water mark (OHWM) of the creek channel.

Although the measured distance of the pond beginning at the outfall culvert downstream

of the dam, and the upstream western property line, is approximately 615 feet, the actual

distance of the traced channel meanders totals approximately 690 linear feet. The

average stream width measurement is 68-inches (5’8”) and the average depth of the

channel is 8-inches. All measurements and channel dimensions were taken with a

Luftkin steel tape (25 foot) and are referenced from the OHWM of the creek. Since the

pond construction resulted in the coverage of nearly 700 linear feet of original channel,

KE reasonably determined the average or mean channel dimensions by carefully taking

two creek channel measurements downstream of the pond, and two channel

measurements upstream where the creek enters the pond (See Figures 1 and 2). After

recording each of the [OHWM] measurements, KE averaged the sum of the totals which

are presented in our findings herein (See Tables 1 and 2). This methodology provides a

reliable tool for calculating a reasonably accurate estimate of channel impacts associated

with the pond construction and associated fill material placed within the channel.

FINDINGS

Based upon KE’s April 5, 2014 on-site field inspection and data collection of the Johnson

stock watering pond, we find and offer the following professional opinions regarding the

alleged violation. To begin, KE observed and photo-documented that Six-Mile Creek is

not tributary to any other tributary creek, stream, or river channel. After exiting the

subject pond, Six-Mile Creek continues flowing for a distance of 0.33 tenths of a mile

where it terminates at a relatively large man-made irrigation canal. It’s KE’s

understanding that in the Omaha District of the COE, irrigation canals and ditches, where

flows are regulated according to state appropriated water rights and functional water

control structures, such irrigation structures are not considered as regulated waters of the

U.S. subject to Section 404 permitting requirements.

Upon further research, KE also noted that even if the COE and EPA determined that

irrigation canal and ditches are jurisdictional waters of the U.S. in Wyoming, the nearest



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in-fact/traditionally navigable water of the U.S. is the Green River. From tracing the

tributary stream and/or small river channels all the way to the nearest confluence with the

Green River, the distance appears to be approximately 80-100 miles. Consequently, KE

opines that it’s beyond any reasonable possibility that a discharge of some clean soil and

rock fill material into Six-Mile Creek would have a significant effect upon the physical,

chemical, and biological integrity of the Green River located nearly 100 miles away.

Therefore, it’s overwhelmingly evident in KE’s opinion, that it’s not even plausible that

the discharge of fill material associated with the construction of Mr. Johnson’s pond

could have a significant nexus to the Green River.

In addition to our observations and findings regarding CWA jurisdiction of Six-Mile

Creek per se, KE noted that within jurisdictional waters of the U.S., including wetlands,

stock ponds are exempt from needing a Section 404 permit. In accordance to 33 CFR

Part 323.4, it’s KE’s understanding that stock ponds are exempt from regulation provided

the work doesn’t impair or restrict the flow and circulation patterns (Six-Mile Creek),

and put the area into a use it wasn’t previous subject; both “recapture” tests must be met.

In regard to flow and reach, we observed that there is as much water flowing out of the

pond as there is flowing into the pond (See Photos). The pond appears to temporarily

detain the water, probably picks up additional ground water, and then discharges the

same or possibly more volume into the original channel. Hence, there is absolutely no

observed restriction of flowing water in the channel of Six-Mile Creek downstream of the

pond, and the circulation pattern of the channel has not changed. KE observed no

diversions, cutoffs, or new/alternate channels created as a result of the stock pond.

In regard to putting the area into a new use, it’s KE’s understanding, as well as our

observations, that the Johnson farm has been in agricultural use for more than a century,

and that the use has not changed. KE observed livestock on the farm, irrigation ditches,

irrigated pastures, and reviewed documents showing that Johnson has legal [irrigation]

water rights, and that the pond is located within legally irrigated land pursuant to his state

water right (WY State Engineer May 25, 2011). The use is therefore still agricultural

(stock watering), and KE is unaware of any evidence of, or plans for, changing the

Johnson farm from agriculture to commercial, residential, or industrial development.

In the event that the COE and the EPA ultimately pursue regulatory jurisdiction for the

pond, KE checked to determine if the pond construction is authorized by an existing

nationwide permit, most specifically, nationwide permit number eighteen (NWP#18).

Please note that NWP#18 authorizes minor discharges of dredged or fill material into

waters of the U.S., including wetlands. A minor discharge means 25 cubic yards or less,

placed below the plane of the OHWM of a channel or within a jurisdictional wetland.

Since all nationwide permits are permits that have previously been authorized on a

nationwide basis, there is no need to apply for these permits. However, many of these

nationwide permits and/or their conditions require a pre-construction notification (PCN)

to the COE in order for the agency to verify the applicability of the permit, and/or the

need to add special conditions, etc. According to NWP#18, a PCN is only required if

there will be a discharge into regulated wetlands, or if the discharge into a stream channel

exceeds 10 cubic yards below the OHWM of the channel. Consequently, when the minor



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discharge is less than 10 cubic yards and/or is not placed in wetlands, the work is

authorized and there is no need or requirement for notifying the COE prior to

commencing with the work. Since KE concurred with the COE’s and EPA’s prior

determination that the pond work didn’t impact wetlands, KE took careful measurements

and calculations to determine if the pond construction resulted in the discharge of more

than 10 cubic yards below the OHWM of Six-Mile Creek.

As mentioned earlier, KE employed standard field methods for measuring stream channel

impacts for the purpose of obtaining the most accurate estimates practicable. Since the

pond and extant fill prevent exactly precise calculations, a reasonably accurate alternative

is to take precise channel measurements immediately upstream and downstream of the

pond, and then calculate averages for both channel segments (Table 1). In the worst case

scenario, i.e. inaccurately weighted toward maximum adverse impacts, only the channel

dimensions downstream (below) the pond were also calculated (Table 2). By reviewing

our data in both Tables, it is apparent that the maximum discharge of fill material below

the OHWM along a 60 linear foot section of the distal end of the pond was significantly

less than 10 cubic yards. Consequently, KE opines that if the creek channel was actually

a regulated water of the U.S., the discharges of fill material associated with the

construction of the Johnson pond was already authorized by NWP#18 and that there was

no need for Mr. Johnson (or anyone else) to notify the COE prior to construction.

CONCLUSION

As a former COE federal regulator and enforcement officer specializing in Section 404

Clean Water Act jurisdictional determinations, KE found no evidence of a federal or state

violation. Should you have any questions, comments, or need additional information,

please feel welcomed to contact us at your convenience.

Sincerely,

Ray L. Kagel, Jr., M.S. Susan W. Kagel, M.S., Ph.D.

Professional Wetland Scientist #2234 Wetland Scientist

Wildlife Biologist Project Manager

Ray L. Kagel, Jr., M.S. Susan W. Kagel, M.S., Ph.D.

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Kagel Environmental, LLC Wetlands, Wildlife and Permitting Specialists

NO SCALE

FIGURE 1. OVERVIEW OF

THE JOHNSON STOCK

WATERING POND. The original channel, as traced on

historical aerial photographs, is

represented by the blue line and

meandered for approximately 700 feet

on the Johnson property. An

approximate representation of the

pond is highlighted in aqua. The dam

construction is shown within a black

frame, and is blown up in the next

figure.

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Kagel Environmental, LLC Wetlands, Wildlife and Permitting Specialists

NO SCALE

FIGURE 2. DAM

CONSTRUCTION ON THE

JOHNSON PROPERTY. The dam is represented by the yellow

triangle. The pipe through the dam is

shown, and approximate lengths in the

channel are indicated.



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Table 1. Calculations of actual fill placed below the Ordinary High Water

Mark (OHWM)

Downstream

Upstream

Width 1 84 in Average 68.5 in

58 in

Average 54 in Width 2 53 in

50 in

Depth 1 6 in Average 8 in

5 in Average 6 in

Depth 2 10 in 7 in

Stream Width = Average of 68.5 in and 54 in = 61.25 in

Stream Depth = Average of 8 in and 6 in = 7 in

Fill Volume Calculations

61.25 in x 7 in x (60 ft x 12 in) = 308,700 in3

308,700 in3 ÷ 1,728 in

3/ft

3 = 178.65 ft

3

178.65 ft3 ÷ 27 ft

3/yd

3 =

6.6 yd

3 of fill below the OHWM

Table 2. Calculations of Worst Case Scenario* of fill placed below the

Ordinary High Water Mark (OHWM)

Measure Width Depth Fill Volume Calculations

1 84 in 6 in 84 in x 6 in x 60 ft x 12 in/ft = 362,880 in3

362,880 in3 ÷ 1,728 in

3/ft

3 = 210 ft

3

210 ft3 ÷ 27 ft

3/yd

3 = 7.8 yd

3 Fill below OHWM

2 53 in 10 in 53 in x 10 in x 60 ft x 12 in/ft = 381,600 in3

381,600 in3

in3 ÷ 1,728 in

3/ft

3 = 221 ft

3

221 ft3 ÷ 27 ft

3/yd

3 = 8.1 yd

3 Fill below OHWM

*Worst case scenario is using the two measurements taken below the dam spillway, where

the calculated fill below the OHWM would be the greatest.

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Top Photo: East facing view of Dr. Kagel standing in outflow channel below dam.

Bottom Photo: Close-up western view of Dr. Kagel measuring OHWM width.

Kagel Environmental, LLC Wetlands, Wildlife and Permitting

Specialists SITE PHOTOGRAPHY

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Top Photo: East view of downstream channel width (84”) at the OHWM. Bottom Photo:

Downstream (east) view of the channel above the pond.



-10-

Close-up view of measuring width and depth of channel upstream of Johnson pond.



-11-

Left Photo: Upstream (western) view of Dr. Kagel standing in Six-Mile Creek near its

terminus in a man-made irrigation canal. Blue arrows indicate water flow direction. Right

Photo: Close up of same view of Six-Mile Creek at the confluence with the irrigation

canal.



-12-

Top Photo: Downstream view of irrigation canal that receives 100% of Six-Mile Creek

flow. Bottom Photo: Upstream view of irrigation canal with Dr. Kagel standing above

water control structure.



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